Busting Maria Miller’s ‘Mythbusters’ on gay marriage

Accompanying the publication of the Marriage (Same-Sex Couples) Bill to be debated by Parliament next Tuesday the Government have supplied a short guide, a fact sheet as well as a three-page Mythbuster by Maria Miller, a list of what it calls ‘Myths about equal marriage – setting out the truth’.  Yet rather than busting myths, it spawns them, exposing in the process the extraordinarily rushed, shambolic way in which this legislation has been prepared.

The Bill alters dozens and dozens of Acts going back to the Submission of the Clergy Act 1533, and therefore runs to over 50 pages. Normally, when a government seeks to change so many laws, it acknowledges the seriousness of what it is undertaking by a staged process of reflection and study. It publishes a Green Paper to frame the debate, an authoritative guide in the form of a White Paper; and these are followed, eventually, by a draft bill. Yet on this occasion, the Government’s desperation to deliver their pledge of gay marriage by the end of this Parliament in order that they can enter the next election having secured (so they believe) hundreds of thousands of new voters, has required doing away with all that. The result has been a process which Archbishop Peter Smith of Southwark accurately describes as “shambolic”.

The only attempt at consultation was a travesty: it was carried out against a background of reassurances that same-sex weddings could not be conducted in religious premises, but then, after the end of the Consultation, the Government withdrew those reassurances, giving no opportunity for interested parties to add to their submissions. In itself the Consultation made a mockery of the Government’s ‘Impact Assessment’, which succinctly sets out, under ‘What policy options have been considered’ the option to ‘do nothing’. Yet the consultation did not consider that option: the assumption all along was that same-sex marriage would be implemented, albeit in one of several different possible forms. And it ignored the massive petition against gay marriage, as well as the arguments of those behind it.

By setting aside formal procedure, and shrinking to a minimum any opportunity for argument and reflection, the Government has kicked open the door to years of what the Catholic bishops describe as “costly litigation, the need for continuing ad hoc parliamentary engagement, or both” in respect of the practical effects of same-sex marriage on families and children, pensions and social security, IVF and embryology, among many other areas.

The Government’s ‘mythbusters’ have to be set against the legal opinion of Aidan O’Neill QC – an expert in discrimination law from a well-known chambers specialising in human rights law – for the Coalition for Marriage which sets out the potential legal ramifications of creating same-sex marriage in law (download summary O’Neill). Yet rather than respond with legal advice of their own, the Government simply dismisses his.

Here we bust the main myths which the Government’s defence of its position generates.

1. We should not prevent people getting married unless there are very good reasons – and loving someone of the same sex is not one of them, the Government claims. But of course there are a number of very good reasons for preventing same-sex couples marrying, all stemming from the nature of marriage as a procreative union, with sexual difference at its heart, which offers the chance for a child to be raised by its birth-parents. A redefinition which, by its nature, intentionally denies the child either a mother or a father or both, is one very good reason for preventing the creation of same-sex marriage. Another is that the state only promotes marriage because of society’s interest in ensuring stable families, which are in turn founded on the dual lineage of men and women; and therefore the state has no interest in promoting any other kind of relationship. (For more “good reasons”, see the bishops’ briefing.) Considering the many demands marriage makes and the restrictions on it which this Bill leaves in place — you can’t marry if you’re already married; or want to marry two or more people; or wish to marry your sibling — it would be more honest for the Government to say: “We should not allow people to get married unless there are very good reasons”. And being in a same-sex relationship isn’t one of them.

2. Marriage is not static. It has always been an evolving institution. The fact that something has changed is not, of course, an argument that it should in the future; but anyway marriage has been remarkably consistent over time and culture, and especially in the West for hundreds and hundreds of years: one man, one woman, in a stable, procreative institution. The ‘mythbuster’ lists nineteenth-century bars to Catholics, Baptists ‘and others’ from getting married in Anglican churches, noting how these ‘inequalities’ were addressed in the twentieth century when married men and women became ‘equal before the law’. But what the Government’s history lesson ignores is that attempts to restrict marriages on grounds of faith or race are exceptional and arbitrary; they go against the traditional nature of the institution, which allows any man to marry any woman if they are free to do so. Lifting such restrictions, in other words, were means to restore the true nature of marriage, not attempts to redefine it. Restricting marriage to a man and a woman is not an ‘inequality’ any more than is restricting marriage to the unmarried. (By the Government’s own reasoning marriage must later open to siblings, polygamous unions, as well as those already married, as ‘historic inequalities’ are lifted.)

3. No religious organisation or religious minister will be compelled to marry same-sex marriages. Not true, say the Government: the Bill’s provisions make that clear.  But while it is the Government’s intention to disallow such compulsion, will that intention be sustainable in the courts? O’Neill was asked by the Coalition for Marriage three questions about marriage: ‘Would [a] same-sex couple have a properly arguable claim [for suing the Church of England for discrimination on grounds of sex and sexual orientation if barred from getting married in the CofE]; and might churches protect themselves by deciding not to provide marriage services at all; and would the Church of England be better protected if it was disestablished?’. His unequivocal answer: ‘Yes, to all’. The Government offers no legal reasoning to counter this view.

4. Human rights law in Europe makes it clear same-sex marriage is a matter for individual states to decide. Indeed: the so-called “margin of appreciation” (discretion) given to the UK by Strasbourg is wide. But here’s the catch: if enough states party to the European Convention on Human Rights create same-sex marriage, Article 12 – “Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right” – will be redefined (the Convention is, after all, a “living instrument”). Thus, any institution in the UK that bars same-sex marriages could find itself breaching Article 14 rights. As these are technically rights against the UK as a state, Strasbourg could order the UK to end all prohibitions which forbade same-sex marriage, and, in doing so, could shrink drastically that margin of appreciation. But even before the Convention is amended, Strasbourg has made clear that, while there is no right to same-sex marriage, states which introduce it have to be very careful to ensure equal treatment for parties to marriage. On these grounds, it is obvious that a minister of religion who refuses to marry a same-sex couple will be vulnerable to the claim that he is ‘discriminating’, and the Government is simply not in a position to guarantee the outcome of any such claim, as the bishops’ briefing eloquently argues. In regard to Public Sector Equality Duty, for example, the bishops note that the Bill “does nothing to prevent public authorities from taking into account a decision by a religious organisation not to opt-in to same-sex marriage” and “does nothing to prevent religious organisations which do not opt-in to same-sex marriage from being treated less favourably by public authorities, for example by refusing to award public contracts or grants to religious organisations.”

5. The Churches of Wales and England can decide for themselves whether to conduct same-sex marriage. Yes, but what happens when one vicar decides to do so, appealing to his medieval autonomies, as happened at St Bart’s in 2008? He opens the legal door for all other vicars to be forced by the courts to follow suit. This won’t happen tomorrow, but it will in a decade; look at Denmark. The point is this: with the special legal prerogative of the established Churches comes liability to English law – and that means human rights and judicial review.

6. Teachers will not have to promote same-sex marriage to pupils in sex and relationships education. Not explicitly, no. But there is a special statutory duty to promote marriage in schools, and the concept of marriage is not defined in existing legislation. So, again, this will be fertile territory for campaigning organisations and their lawyers, especially as the Government says they mustn’t ‘discriminate’ (a concept which is not settled in law). It is extremely likely that a teacher who does not wish to promote same-sex marriage will be liable to being sacked should they refuse to promote it. Ergo, they will have to promote it – or move to another school. O’Neill’s advice is stark: “If [a] teacher refused to obey the otherwise lawful instructions of her employers then this would constitute grounds for her dismissal from employment”.

7. Teachers will continue to have the clear right to express their own beliefs; no teacher will be required to promote or endorse views which go against their beliefs. This is self-evidently untrue; an employee cannot do this at the moment. If you think that secular schools will not sack teachers who support traditional marriage, consider the case of Lillian Ladele, victimised by her own employer for requesting an opt-out of conducting civil partnerships. And on that subject:

8. People will not be sacked if they criticise same-sex marriage at work; the four recent European Court cases show that people are free to follow their beliefs at work; Adrian Smith was wrongfully dismissed. This is a breathtakingly audacious evasion of the facts. Adrian Smith was dismissed and had to fight through the courts for compensation; he was not reinstated in his job. The four Strasbourg cases were all lost except for the one, Mrs Eweida, who had already been allowed by her employer to wear a cross at work.  People have been sacked for criticising SSM – not least Adrian Smith and the three losers at Strasbourg — and will be again.

9. We are not abolishing the terms ‘husband’, ‘wife’, ‘mother’ and ‘father’. But over time this will happen, as in Spain

10. We have absolutely no plans to amend the law on marriage in any other area; this is not the ‘thin end of the wedge’. No need to doubt this pledge; the Conservative Party is already divided and shedding volunteers because of popular outrage at the measure – -they won’t want to open this can again. But not having plans doesn’t mean it won’t happen. Tony Blair persuaded Parliament to back civil partnerships in 2004 by banning civil partnerships in churches and other places of worship. Partly this was to make clear the distinction between these and marriage, partly because he feared endless wrangling in the courts. In December 2011 the Government introduced civil partnership ceremonies in places of worship without even a parliamentary debate; Blair’s assurances, in other words, were worthless. Put together with the speed with which same-sex marriages have been introduced, the handling of the consultation and the fact this has come about simply because of the Prime Minister’s Party Conference speech in 2011, you can understand why people doubt that this is the last change.

11. This Bill is not being rushed through Parliament; it was in the Conservative Party General Election manifesto and so there is a mandate for this action; polling supports same-sex marriage; the views of opponents were taken into account. Here comes the opportunity for some substantial choking. It is simply not true that a pledge to create same-sex marriage was in the manifesto; there was an obscure, ambiguously-worded clause which has since been used, in a way that is entirely strained and unpersuasive, to claim it was. But if anyone — let’s start with the Conservative Party and the media — knew that the Conservatives intended to legislate for gay marriage, it would (obviously) have been a matter  for debate in the election. There is, of course, no mandate. There is no substantial demand for it among gay people. And as for polling favouring the move, that obviously depends on the poll. A ComRes poll for Catholic Voices found 70 per cent favoured the current understanding of the law. Other polls which have asked about “equal marriage” — a loaded, meaningless term — have recorded support between 50 and 60 per cent. It is impossible, on the basis of the polls, to claim a popular mandate, especially as  — in the absence of a proper debate — most people haven’t had to think about it. Where they have done — as in France over the past months — support for the idea has dramatically decreased.

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